MADPET is for the Abolition of Death Penalty, an end of torture and abuse of rights by the police, an end to death in custody, an end to police shoot to kill incidents, for greater safeguards to ensure a fair trial, for a right to one phone call and immediate access to a lawyer upon arrest, for the repeal of all laws that allow for detention without trial and an immediate release of all those who are under such draconian laws.

Sunday, February 26, 2017

MALAYSIA’S CABINET’S DELAY IN TABLING LAWS ABOLISHING THE
DEATH PENALTY RISKS UNNECESSARY LOSS OF LIFE

-Immediate Moratorium On ALL Executions -

MADPET(Malaysians Against Death Penalty and Torture)
is appalled that Malaysia may be very soon hanging 44-year-old Rames and 39-year-old
Suthar Batumalai, when Malaysia may be
on the verge of the abolition of the death penalty.

In November 2015, Nancy Shukri ,the
then Minister in Charge, stated that the proposed amendments will be tabled in
March 2016, which may have had the affect of abolishing the mandatory death
penalty for murder, and if the law had been amended then, Rames and Suthar would
most likely not be facing execution now. They were both convicted for murder
that carries the mandatory death penalty. Hence, it may rightly be suggested
that it is the failure of the Malaysian government to act promptly and speedily
bring about changes in law, abolishing the mandatory death penalty that has
caused this unacceptable situation today, which may result in the death of these
two persons.

IF NOT FOR
GOVERNMENT DELAY, RISK OF BEING HANGED WILL NOT EXIST

Nancy Shukri did say thatshe hoped to take her proposal to amend the
Penal Code and abolish the mandatory death sentence to the Dewan Rakyat as
early as March 2016.( Malay Mail,
17/11/2015). A
few days before that, the Attorney-General Tan Sri Apandi Ali reportedly said
he will propose to the Cabinet that the mandatory death penalty be scrapped, so
that judges are given the option to choose between sentencing a person to jail
or the gallows. (Malaysian Insider,
13/11/2015)

Nancy, the de facto Law Minister, also
told the 6th World Congress Against the Death Penalty in Oslo (Norway)in June
2016 that a government-backed study on the death penalty had been completed and
a paper is being readied by the Attorney General’s Chambers(Star,22/6/2016). The study
was said to reveal that Malaysians were in favour of the abolition of the death
penalty, especially the mandatory death penalty. But, apparently when it was
finally submitted to the Cabinet, the decision was that there was a need for
further studies.

Minister in the Prime Minister's
Department Datuk Seri Azalina Othman, the new de facto Law Minister, during the
Parliamentary session on 2/11/2016 clarified that Malaysia was not just looking
at the mandatory death penalty, but all death penalty. They were considering
possibly replacing the death penalty with life imprisonment. It was indicated
that further studies were to be done, and that. "The decision on the
implementation of the death penalty in this country, either be repealed or
maintained, is a policy matter to be decided by the government based on the
results of the study,"(The Sun Daily, 3/11/2016)

MORATORIUM
ON EXECUTIONS PENDING FINAL DECISION ON DEATH PENALTY

As such, whilst the government is in
the process of considering whether the death penalty is to be abolished or not,
it is only just and reasonable that a moratorium on executions be put in place
until the final decision be made. A moratorium is simply a stay of execution,
not a revocation of the sentence. If the Cabinet, and thereafter Parliament, ultimately
decides to not abolish the death penalty and/or the mandatory death penalty,
executions can still be carried out. It’s most reasonable that there be a
moratorium now.

UNJUSTIFIABLE
TO HAVE MORATORIUM ON CERTAIN OFFENCE THAT CARRIES THE MANDATORY DEATH PENALTY
BUT NOT ALL

At
present, apparently there is a moratorium on executions for drug trafficking,
which carries the mandatory death penalty, as mentioned by Edmund Bon Tai Soon,
Malaysia’s AICHR (ASEAN
Intergovernmental Commission on Human Rights) representative, who was reported
saying ‘…Malaysia’s moratorium, I understand, is only for drug trafficking
cases…’ (Star, 10/7/2016).

There is no justification to have a moratorium
on certain offences that carry the mandatory death penalty, but not others. Malaysia
needs to be consistent, and impose a moratorium on executions of all offences
that currently provide for the mandatory death penalty. If judges had the
discretion on deciding appropriate sentences, even for murder, they may in some
cases decide that a more appropriate sentence given the facts and circumstances
may just be imprisonment – not death. But alas, with an offence that provides
just one mandatory sentence, judges have been deprived of their choice of the
most appropriate sentence for each case.

When Malaysian laws are finally amended,
resulting in the abolition of the mandatory death penalty and/or even the death
penalty, it will only be just for the courts to review the sentences of persons
previously been sentenced to death – to determine what the appropriate sentence
should be. This was done in Singapore, where the affected death row inmates,
had their sentences reconsidered by the Courts, for even the offence of murder.

Human Rights Commission of Malaysia
(SUHAKAM), also did reiterate on 29 March 2016 their recommendation that a
moratorium on the use of the death penalty be put in place in Malaysia. Many
others, including the Malaysian Bar and MADPET have also called for a
moratorium on executions.

UN RESOLUTION ON
MORATORIUM ON THE USE OF THE DEATH PENALTY

When Malaysia should have abstained, it was
disappointing that Malaysia voted against the United Nations General
Assembly(UNGA) Resolution on Moratorium On The Use of The Death Penalty on
19/12/2016, given the fact that Malaysia is currently in the process of
studying and evaluating the future of the death penalty in Malaysia.

It must also be noted that the majority of the 57
members of the Organisation of Islamic Countries (OIC) voted for the resolution
and/or abstained. 24 OIC member nations voted in favour, 13 abstained and only
18 voted against.

Malaysia, Singapore and Brunei were the only 3 ASEAN
member nations that voted against this resolution. Even Indonesia abstained.

The 2016 UNGA Resolution was adopted with 117 votes
in favour, 40 abstentions and 31 votes against.Since the first UNGA resolution on the
moratorium and death penalty in 2007, the number of votes in favour has been
increasing. The global trend is towards abolition.

In this case of Rames and Suthar
Batumalai, there are allegedly other concerns including the deprivation of the
right for their clemency petition to properly considered and determined.Rames and Suthar had on Thursday submitted a clemency
application through their lawyers to the Negri Sembilan Pardons Board. (Star,
23/2/2017)The Malaysian Bar has also urged the
Government to not proceed with the execution until the clemency proceedings is completed.

Prime Minister Najib and Malaysia’s
Cabinet must listen to the Malaysian people, including Malaysia’s Attorney
General and SUHAKAM. Even the PAS President, Hadi Awang, and Malaysian Muslims would
be for the abolition of the Death Penalty, more so when it is provided for by
laws other than the Syariah law. In the recent proposed amendments to Act 355,
Hadi Awang’s motion clearly excluded death penalty.

Therefore,
MADPET

Calls on Malaysia to stay the
execution of Rames and Suthar Batumalai
until their clemency petition is duly considered and decided upon;

Call on Malaysia, given the fact
that Malaysia is currently in the process of studying and considering the possibility
of abolishing not just the mandatory death penalty, but also all death penalty,
that a moratorium on all executions be put in place until a final decision is
made about death penalty in Malaysia;

Call on Malaysia to tabled the
required amendments and/or law in the upcoming Parliamentary Session that will
bring about the abolition of the death penalty, restoring the discretion in
sentencing back to the judges; and

Call on Malaysia to abolish the
death penalty.

Charles Hector

For and on behalf of
MADPET(Malaysians Against Death Penalty and Torture)

MADPET(Malaysians Against Death
Penalty and Torture) is shocked that the Public Prosecutor maybe considering the
proposalto deny bail for repeat
offenders of small drug-related crimes that carries the penalty of 5 years or
less. This was reportedly disclosed by Perak Narcotic Criminal Investigation
Department head ACP V R Ravi Chandran who
said there was a need to do so ‘… due to the increase of 12.2%, or 2,220
people, who were arrested for various drug-related offences last year..’.(FMT News, 2/2/2017 ‘Perak mulls denying bail for repeat drug
offenders’)/and Star 3/2/1017).

We recall the legal principle that every accused shall be presumed
innocent until proven guilty, that is proven guilty after a fair trial.

The purpose of bail is simply that
the accused person be released on condition that he turns up in court on the
dates fixed for his/her case. Judges do consider all relevant factors, before
deciding on the question of bail, which also may be granted on many other conditions,
if needed.

As it is now, section 41B of the
Dangerous Drugs Act 1952 already denies bail for persons charged with offences
under the Act that carries the death sentences or sentences of more than 5
years imprisonment. Section 41B 1(c), however, states as follows, ‘where the offence is punishable with imprisonment for five
years or less and the Public Prosecutor certifies in writing that it is not in
the public interest to grant bail to the accused person. That means the Public
Prosecutor will decide, and the accused has to stay in detention until the
trial is over and the court decides whether he/she is guilty or not. This is
unacceptable.

Judges should
decide whether bail is to be granted or denied to an accused in any particular case.
In bail applications, judges do consider all the arguments of the prosecutor
and also the accused persons. Judges, after taking into account all relevant
facts and the law, decides whether bail be granted or not, and if granted on
what conditions. It is wrong for Parliament through laws to oust this
discretion of judges and/or courts. It is even more unjust, if that decision
rests just in the hands of the Public Prosecutor.

What the
Perak police is allegedly asking for is even more draconian, they want bail to
be denied to all ‘repeat offenders’. It must be noted that some, especially the
poor, even when innocent, do plead guilty especially for offences that carry
lesser sentences.

Section
41B(1)(c) give the power of denial of bail to the Public Prosecutor, who simply
has to certify ‘… in writing that it is not in the public interest to grant
bail to the accused person…’Judges and courts power to decide on bail is simply
ousted.

Worse
still, the application seems to be for a blanket denial of bail for all persons charged with a drug
related offence is unacceptable. This
would include even persons allegedly with a very small amounts of drugs,
possibly simply for personal usage. Every person’s application for bail should
be considered individually.

Great
injustice when an innocent person is deprived of his liberty for so many months
or years, and then found to be not guilty. As it is, trials in Malaysia can take
a very long time, and it is possible some may have been detained for periods
that are even longer than the maximum imprisonment sentence they would have
faced if found guilty by court.

Denial of
bail means not just the loss of liberty. It will also affect a person’s
employment and income, a person’s business and other income generating
activities. The impact will be also be felt by the family and dependants. Now,
that Malaysia is a signatory of the United Nations Convention on the Rights of the Child, and by reason of the values Malaysians
hold, we have to ask whether it is in the best interest of the child if her/his
parent, brother or sister, is kept in detention even before the court
finds/him/her guilty.

What is worse, is the greater injustice that befalls a person and also
his/her family, if the courts finally determines that he/she is not guilty.
Harm cause by this denial of bail can never be erased, and in Malaysia, at
present there is still no law that provides for just compensation for those
victims, whose freedom and liberty have been denied for so long. It is thus
important, that we, at the very least, have a law to provide for just
compensation and/or damages to such persons, found to be innocent, for the time
they had already spent in detention by reason of denial of bail, poverty, wrong
court decisions that are overturned by higher courts, and even unnecessary detention
by police for remand. In some case, where there may have been justification to
keep a person in detention and that person is finally acquitted and set free,
he/she also needs to be compensation for the loss of liberty and freedoms,
he/she had to suffer by reason of the said detentions.

The poor suffer the greatest when courts set bail at an amount, which
is too high and/or affordable to them and/or their family/friends. In Malaysia,
where the bail is set at RM10,000, then the surety is expected to have that
RM10,000 and be willing to part with it for the necessary duration. A poor man
earning RM1,000 per month, which is used to support himself and his family,
when asked to post bail of even RM2,000 may find it almost impossible. A poor
man’s family and friends also may not be able to afford to come up with that
much. End result is that even if bail is granted, but is unaffordable, a person
may end up in detention until the trial is over.

Worse still is the situation when a person, who has been in detention
by reason of denial of bail or being unable to afford bail, is finally found
guilty for an offence where the maximum sentence is much less than the time
actually spend in detention awaiting the end of trial. There is still no
compensation for the extra unnecessary time spend in detention. Some judges, do
consider the period the convicted has spend in detention when handing out
sentence, and sentence them to the time spend already in detention which
enables the convicted to immediately go free. But the doubt arises whether the same
judge would have given a much lesser sentence if the same accussed had been out
on bail pending conviction.

This bleak reality also results in many persons who may be actually
innocent pleading guilty at the onset, because by so doing, they will just
simply have to spend time in prison for a shorter defined period, and
thereafter resume their ordinary life as soon as they get released. A great
injustice happens.

Now, if bail is denied for minor drug related crimes, that carry
sentences, if convicted, of imprisonment of five years or less, the naturally
we may find many of these persons who are innocent or will never be found guilty,
simply pleading guilty at the very start of the trial. It may good for the
government, the police/enforcement officers and the prosecution to show
effective law enforcement, but in actual fact it may not be true and a great
injustice would occur.

As such, MADPET calls for

a)That the question of bail must be always determined
by the Judges and/or Courts, and certainly never the Public Prosecutor;

b)That all laws and/or provisions of law that
deny the right to apply for bail, including section 41B Dangerous Drugs Act
1952 be immediately repealed;

c)That right to bail is exercisable by all who
are entitled, especially the poor. Bail amounts should be set taking into
account the income of the accused and/or his immediate family;

d)That trials, where the accused are not out
on bail, be expedited, and completed preferably not later than six(6) months;

e)That Malaysia enacts a law that will
properly compensate the loss of liberty, freedoms and rights for those who have
spend time in detention who is ultimately found not guilty and/or are acquitted.
This compensation should also probably compensate the expenses incurred by the
said accused (or even initially convicted) in his/her struggle than ended up in
court finding him not guilty and/or acquitting him;

f)That Malaysia promotes and respects the
human rights and freedom of all, including the right to a fair trial and the
right to bail.

Charles
Hector

For and
on behalf of MADPET(Malaysians Against Death Penalty and Torture)

Sunday, February 12, 2017

Report: Another death in police custody

Thursday February 9, 201709:28 AM GMT+8

S. Bala Murugan died in custody at the North Klang police station yesterday.— AFP picKUALA
LUMPUR, Feb 9 ― A man died at the North Klang police station yesterday,
just a few weeks after a detainee died in police custody in Pahang.

However, this time, according to The Star, the police
allegedly defied court orders to release S. Bala Murugan, 44, and to
bring him to a hospital, as they brought him back to custody instead.

The news report said the magistrate ordered Tuesday Bala’s release so
he could seek medical attention after he was seen bleeding severely from
the mouth when he was brought in to be remanded at the Klang court.

“At 6am (Wednesday), we received confirmation that Bala had died in
police custody. There was no report of a re-arrest, which means Bala was
held illegally after the magistrate ordered for him to be released, and
he died in custody,” lawyer Gerard Lazarus was quoted as saying.

Based on claims by family members, the report said Bala was wrongfully
arrested by the North Klang district police officers on Monday after he
happened to be with two other men, one of whom was wanted by the police.

Gerard, in the news report, claimed that Bala was beaten while in detention and brought to the court that day.

“When I tried to clean him (Bala) up and asked him to drink some water,
he ended up vomiting blood, and the magistrate saw all of this.

“That was when he (the magistrate) called the investigating officer of
the case and asked for Bala to be released or taken to the hospital
immediately.

“The investigating officer agreed and said he would do so. However,
police officers later told the family that they needed to take Bala to
the police station first before releasing him,” he was quoted as saying.

Gerard then claimed that he was told that the police refused to release
Bala and that the next news they received was of the latter’s death.

He also reportedly said that Bala's family members were unhappy with the post mortem and wanted another to be conducted.

The news report, however, did not state the post mortem findings.

On January 18, Soh Kai Chiok, 49, reportedly died from inflammation of
the intestine while under police custody in Bera after he was brought in
for allegedly stealing bananas at a plantation.

Following this, the Enforcement Agency Integrity Commission (EAIC)
announced a special task force to investigate Soh's death to identify if
the police had mishandled the detention procedure.

Prior to this, in 2013, the EAIC found police misconduct in the case of N. Dharmendran, 32, who died in detention.

According to the EAIC report, four policemen in charge of questioning
Dharmendran had beaten up the victim, causing massive bleeding from
blunt force trauma leading to his death. Evidence showed he even had
staple wounds to his ears.

The EAIC found the police later fabricated evidence to cover up the violent interrogation and recommended disciplinary action.

The policemen were charged but acquitted at the High Court last year.

However, the victim’s widow won a separate civil lawsuit to claim damages for Dharmendran’s death from the policemen.

Judges should be deciding whether bail is granted or not. This power should most definitely not be given to the Public Prosecutor.

Neither should laws take away the judges discretionary powers when it comes to bail.

Remember that one is presumed innocent until proven guilty after a fair trial.

Perak mulls denying bail for repeat drug offenders

Bernama

|
February 2, 2017

A proposal to deny bail has been sent to the Attorney-General's Chambers in December last year.

IPOH:
Perak will be the first state in the country to apply Section 41(B) of
the Dangerous Drugs Act to deny bail for repeat offenders of drug
addiction and traffickers if its proposal to do so is approved by the
Attorney-General’s Chambers.

Perak Narcotic Criminal Investigation Department head ACP V R Ravi
Chandran said a proposal to that effect was sent to the
Attorney-General’s Chambers in December last year.

“The Attorney-General’s Chambers has asked us (police) to discuss
implementation of the section with the Perak prosecution unit chief.

“If the proposal is accepted, we will apply the provision in the
section this year,” he told a media conference at the Perak police
contingent headquarters here today.

Ravi Chandran said there was a need to implement the provision in the
law due to the increase of 12.2%, or 2,220 people, who were arrested
for various drug-related offences last year.

They included 539 people who were arrested under Section 39B of the
law which provides the mandatory death sentence upon conviction, he
added.

He said 139 people were arrested under the Dangerous Drugs (Special
Preventive Measures) Act 1985 where most of them were the masterminds or
financiers of drug syndicates.

The number of people arrested for drug possession also increased by
13.2% last year, involving 4,622 people, from 4,083 people in 2015.

He said a total of 13,458 people were arrested for drug-related
offences in the state last year, with drugs worth RM8.8 million seized
and property worth RM8.4 million sealed. - FMT News, 2/2/2017

Friday, 3 February 2017

Perak seeks to deny bail to all repeat drug offenders

by manjit kaur

IPOH: Perak may become the first state to deny bail to all repeat drug offenders when they are charged in court.

State
Narcotics Criminal Investigations Depart­ment chief Asst Comm R. Ravi
Chandran said a provision under Section 41B of the Dangerous Drugs Act
1952 allowed the prosecution to request the court to deny bail for
repeat offenders.

The department had forwarded the suggestion to
the Attorney-General’s Chambers in December and was then told to put in
the request to the Perak prosecution unit, which it has done.

“If
the request is granted, our department will be the first in the country
to successfully push for the provision to be implemented,” said ACP
Ravi.

The move, he argued, would be a useful deterrent. He said
repeat offenders are usually allowed bail when charged, and would often
take advantage of this.

“Most are given bail amounts between RM2,000 and RM3,000, and after settling the amount, they are back on the streets again.

“We hope to apply the section this year if the prosecution unit gives the green light,” said ACP Ravi.

The
section states that no bail is to be granted in respect of certain
offences, where the public prosecutor could argue in court that it is
not in the public’s interest to grant bail to the accused person.

A
total of 13,548 people were arrested in Perak last year for
drug-related offences in­­clu­­ding possession, trafficking and
opera­ting drug processing labs, said ACP Ravi.

In another development, police detained a labourer for drug possession during a raid in Simpang, Taiping, at 11pm on Jan 31.

ACP Ravi said police seized 1.4kg of heroin in three plastic packets from the man, who was nabbed following a tip-off.

He tested positive for methamphetamine, and would be remanded until Feb 7.

ACP Ravi said the drugs confiscated are worth about RM35,000. - Star, 3/2/2017

Dangerous Drugs Act 1952

Section 41B No bail to be granted in respect of certain offences

(1) Bail shall not be granted to an accused person charged with an offence under this Act-

(a) where the offence is punishable with death; or(b) where the offence is punishable with imprisonment for more than five years; or(c)
where the offence is punishable with imprisonment for five years or
less and the Public Prosecutor certifies in writing that it is not in
the public interest to grant bail to the accused person.

(2) Subsection (1) shall have effect notwithstanding any other written law or any rule of law to the contrary.

On 18 December 2007, the UN General Assembly endorsed a resolution calling for "a moratorium on executions" by an overwhelming majority: 104 votes in favour, 54 against and 29 abstentions. - RESOLUTION 62/149

On 18 December 2008, the United Nations General Assembly adopted a second resolution calling for a moratorium on the use of the death penalty. 106 countries voted in favour of the draft resolution, 46 voted against and 34 abstained.

22/12/2010, the United Nations General Assembly 3rd resolution in favour of a universal moratorium on the death penalty : 108 countries voted in favour, with 41 against and 36 abstentions.

Radio Interviews & VDOs

BFM Radio (13/10/2011) - Talking with Charles Hector and Nico Tuijn about the death penaltyDeath in Dilemma - The Final Curtain (produced by the Malaysian Bar), about 25 minuted, is shown in the first part of this VDO

MADPET (Malaysian Against Death Penalty and Torture)

MADPET is a movement for the abolition of death penalty and torture, and it is also been involved in issues of administration of justice, death in custody, freedom of expression, opposing abuse of power and wrongdoings by the police, prison authorities and other enforment authorities, animal rights, rights of minority groups, housing rights, rights of the disabled, concerns in the criminal justice system. MADPET is for the promotion of human rights, human freedoms and justice in Malaysia and in our world.